Can divorce mediation favor one spouse in division of assets?

My wife had an affair several years ago and, although we tried to work it out, it isn't. We are both in agreement that we should get a divorce. Although we were married nearly 19 years, there is only one child who is now at college. My wife says we should do a divorce mediation because it may save us time and money over a contested divorce and she thinks we can work out the issues between us, mostly property division. But my question is whether I'm putting myself at a disadvantage in some way by doing a mediation instead of just going to divorce court. For example, I have a very large retirement plan that I've been building up over the last two decades and I wonder if somehow through mediation that asset would be on the table where it might not be in divorce court. Any thoughts?

In a divorce mediation, couples can divide the marital estate any way they agree to, as long as the ultimate agreement is "fair and reasonable" to both parties. In general, your wife cannot use the mediation process to obtain a result she would not be able to obtain at divorce court unless you allow that result. More commonly, in mediation the marital estate will be divided in ways that are similar to how the Probate and Family Court judge would divide the estate if the couple chose to litigate their divorce in court.

To answer your specific question, however you choose to end your marriage, Massachusetts law treats retirement accounts as part of the marital estate. That does not necessarily mean that you would have to share the retirement plan if you chose to obtain a divorce through litigation, but it would be on the table and subject to division in furtherance of obtaining a fair division of assets. The theory is that a marriage is a partnership where both parties benefit from the activities of the other. If a spouse remains at home to care for the children (assuming that was the case in your marriage), he contributes to the marriage and the welfare of the family just as much as the spouse who worked outside of the house. Accordingly, he has a right to participate in the benefits of the retirement plan. Hope that helps.

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